When Can You Deny Visitation To The Non-Custodial Parent

A strong dispute over child custody is not an infrequent occurrence in a divorce settlement. A part of that dispute can be that one parent not only believes they should have physical and legal custody, but that the other parent is unfit to even have visitation rights. There are still other situations when visitation is agreed on in the settlement, but at some point, after the divorce, the parent with custody asks when they can deny visitation to the non-custodial parent.

Denying visitation to a non-custodial parent is difficult to do legally. Tennessee courts presume the best interests of the child lies in having a relationship with both parents. But there are circumstances where either denying, or at least reducing visitation rights, will be considered.

The Best Interests of the Child

The overriding concern in all court decisions regarding custody and visitation is the best interests of the child. Those best interests take several factors into consideration.

A child’s best interests are presumed to include love and affection–the right of the child to know they have this from their parents. It doesn’t mean a parent can never become upset with a child or levy reasonable punishments. It doesn’t mean the parent can’t have a bad day and say something they later regret. What a child’s best interest does require is that the child lives in an overall environment where love and affection exist.

The best interests of children presume they will be educated and formed. This means school and it may, depending on the outlook of the parents, include religion. It may include the teaching of social values important to the parent.

The child's best interests certainly include being provided for in their basic needs–food, clothing, and shelter. It also includes being raised by a reasonably healthy parent.

The best interests of children are presumed to include living in a stable home. This is an area that can be strongly debated during and after a divorce settlement, when the child’s life is going to experience a certain amount of upheaval. A part of a stable home means an environment free from any type of abuse.

Another part of a child’s best interests that becomes extremely relevant in a divorce, is not having a parent attempt to alienate them from the other parent.

This is the general standard that a Tennessee family law judge will look at. It’s the job of the custodial parent–and their lawyer–to show that the non-custodial parent’s presence seriously jeopardizes these best interests.

What Violates the Child’s Best Interests?

Let’s consider some scenarios in light of the child’s best interests and the reality that Tennessee law will presume in favor of visitation until proven otherwise…

The Non-custodial Parent Is Charged With Domestic Abuse

If the abuse in question is physical violence, the non-custodial parent has a lot more to worry about than visitation rights. They might be facing criminal charges. Physical abuse can be proven through hospital visits, cellphone pictures of bruises and other tangible means.

Abuse is more than physical though–it can include verbal and emotional abuse. This is going to be a grayer area when it comes to proof. What one spouse considered verbal abuse, the other considers a regrettable loss of temper–or even a necessary motivator for the child to do well at something.

Courts are unlikely to step in if this is seen as a dispute over parenting methods. But if you can prove abuse–through the means of testimony from people that knew both you and your ex, perhaps testimony from a therapist or anyone else who saw what unfolded, you may be able to make a case.

The Non-custodial Parent Has a Substance Abuse Problem

For the sake of this discussion, we’ll presume the substance in question is a legal one, such as alcohol. Maybe the custodial parent feels like their spouse’s drinking was a primary cause for why the marriage is ending and the kids should not be subjected to it anymore.

This is another area that can get gray and require witness testimony. What one parent feels is irresponsible and addictive drinking, the other feels is just a wind-down after a long day.

Courts take the safety of children very seriously. If it can be demonstrated that the non-custodial parent poses a safety risk to the child, then visitation can be denied. The very premise of visitation usually involves children getting in a car with the non-custodial parent. If drinking or other mind-altering chemicals are a persistent problem, then the children might very well be presumed unsafe. Third-party testimony regarding your spouse’s drinking habits is certainly relevant here.

The Non-custodial Parent Is Irresponsible

It’s not uncommon for parents to disagree on issues like bedtimes, to have varying degrees of strictness about schoolwork and to approach children’s use of electronic communications and social media differently. Simply being the “lax” parent here is not going to mark someone as irresponsible.

But what if the non-custodial parent can’t be counted on to at least be sure the kids get up in time for school? Or that their meals have appropriate nourishment in them? Or if their SATs are on Saturday morning, to at least not be allowed to stay up too late on Friday night?

These are issues that go beyond just a difference in approach. It doesn’t mean a non-custodial parent can’t eat pizza and ice cream with their kids or maybe stay up later than normal to watch a movie. It does mean that patterns of behavior that put children’s health and education at risk are big red flags.

The Kids Have an Opinion

Children may well have an opinion on the visitation issue that’s being debated. Maybe they see the parent they eat ice cream and pizza with as “the fun parent”. On the flip side, maybe they’re terrified of the non-custodial parent with the hair-trigger temper.

The state of Tennessee will hear kids out. Any child 12-years or older has the right to at least give their views on the subject to the court. Kids ages 14 and up will be given greater consideration by a Tennessee family law judge.

Furthermore, a court could go one step further and appoint a guardian ad litem. This is an attorney who is appointed to speak on behalf of the child, regardless of their age. The guardian ad litem will investigate the situation, talk to people who know the family and view the entire landscape from the perspective of what’s best for the child.

The guardian ad item does not necessarily represent the views of the children–though speaking to the kids about what they want will be a part of the investigative process. But the guardian ad litem’s perspective can be a valuable fresh set of eyes in a contentious custody hearing.

Showing a court that your spouse or ex should not have visitation rights is no small legal challenge. But it’s a fight worth having when your child’s best interests are at stake. Conner & Roberts, PLLC has earned a reputation throughout Chattanooga for being experienced, sharp and compassionate family law attorneys. Call us today at (423) 299-4489 or contact us online to set up an initial consultation.

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